Attorney General: Senators Larson, DiBella, Eads and Representatives Ritter, Luby and Krawiecki, State Capitol, 1994-010 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

May 18, 1994

Sen. John B. Larson
President Pro Tempore

William A. DiBella
Majority Leader

Adela M. Eads
Minority Leader
State Capitol
Hartford, CT 06106

Rep. Thomas D. Ritter
Speaker of the House

Rep. Thomas S. Luby
Majority Leader

Rep. Edward C. Krawiecki
Minority Leader
State Capitol
Hartford, CT 06106

Dear Senators Larson, DiBella, Eads and Representatives Ritter, Luby and Krawiecki:

On April 25, 1994, the Governor and the Mohegan Tribe of Indians signed an Agreement to settle "various outstanding unresolved issues extant between" the State of Connecticut and the Mohegan Tribe. By its terms, the Agreement was intended to resolve the Tribe's land claims against the State and "to avoid litigation concerning the existence and scope of the State's present obligation pursuant to the Indian Gaming Regulatory Act to negotiate with the tribe ... to enter into a Tribal-State compact governing the conduct of gaming activities on the Tribe's lands." Agreement, p. 3. The Agreement recites that "[t]he State of Connecticut, through its chief executive officer, approves this Agreement and its approval shall bind the State of Connecticut its agencies, political subdivisions, constitutional officers and officials of its agencies and subdivisions." Agreement, p. 1-2. The Agreement contains a number of commitments made by the Mohegan Tribe and the State of Connecticut. The Mohegan Tribe has agreed:

a. To settle "any and all claims the Mohegan Tribe might have to any public or private lands or natural resources in Connecticut."

b. "To the extinguishment of any and all other claims" against the State of Connecticut. c. "To limit the location of any tribal Gaming operations ... to a single site not to exceed 700 acres."

d. "To submit all gaming related development ... to the regulation of the State Traffic Commission" and "to adopt ... a Health and Safety Code and Fire and Building Code identical to or more stringent than the respective codes adopted by the State of Connecticut."

e. "Upon enactment of federal legislation approving this Agreement ... withdrawal of the Tribe's land claim against the State, Mohegan Tribe of Indians of Connecticut v. State of Connecticut, Civil Action No. H77-434 ..."

f. "To make payments in lieu of taxes" on "all additional tribal trust land" acquired by the Tribe after the transfer to it of the Fort Shantok property and the initial Indian reservation.

g. "[T]o the assumption by the State of Connecticut of criminal jurisdiction over the Mohegan tribal members on land or other natural resources ... owned by the Tribe."

h. "[T]o the assumption of jurisdiction by the State of Connecticut State Traffic Commission over all gaming-related traffic control matters."

According to the Agreement, the State has made the following commitments:

a. "To use its best efforts to support and to obtain state legislation to grant to the United States of America in trust for the Mohegan Tribe certain lands under the control of the State of Connecticut, as more particularly described in Exhibit A [Fort Shantok], and to support the application of the Mohegan Tribe that title to those lands and to the lands, as set forth in Exhibit B, independently acquired by the Tribe be taken by the United States in trust for the Mohegan Tribe as part of its initial Indian Reservation and proclaimed as Indian Reservation lands under 25 U.S.C.  461 The Initial Indian Reservation shall consist of Fort Shantok State Park, as set forth at Exhibit A and the 700 acres as set forth at Exhibit B."

b. "To enter into a gaming compact, attached hereto as Exhibit C with the Mohegan Tribe pursuant to 25 U.S.C.  2710, to support the Tribe's submission of the gaming compact to the United States Secretary of the Interior for approval and to use its best efforts to assist the Tribe in securing that approval."

c. "To resolve with the Mohegan Tribe the matter reserved in Section 15(a) of the gaming compact referred to in subparagraph b above."

d. "To pay the Mohegan Tribe the sum of $1 (one dollar) and other valuable consideration."

e. "To waive any rights it might have to appeal the Final Determination of the Assistant Secretary of the United States Department of the Interior acknowledging the existence of the Mohegan Tribe (59 Fed. Reg. 12140, March 15, 1994)."

f. "To waive any and all claims for offsets, including but not limited to tort or contract claims, which were or could have been asserted against the Mohegan Tribe by the State of Connecticut prior to the date this Agreement is executed by the parties."

Attached to the Agreement as Exhibit C is a "Mohegan Tribe--State of Connecticut Gaming Compact" signed by Governor Weicker and Ralph W. Sturges, Chief G'Tine'Mong of the Mohegan Tribe. Also attached to the Agreement is a Memorandum of Understanding between the State and the Mohegan Tribe suspending the Moratorium on Video Facsimile Games imposed by Section 15(a) of the Compact and a Second Amendment to the Memorandum of Understanding between the Mashantucket Pequot Tribe and the State. By letter dated April 27, 1994, you have asked for the opinion of this Office as to whether the Governor had the authority to bind the State to the Gaming Compact between the State of Connecticut and the Mohegan Tribe of Indians pursuant to the provisions of the Indian Gaming Regulatory Act (IGRA) Pub.L. 100-497, 25 U.S.C.  2701 or whether the Gaming Compact must also be submitted to the General Assembly for its approval.1 The Agreement itself recognizes the existence of this issue, explicitly stating that "The parties also desire to avoid litigation ... concerning the scope of executive authority to enter such a compact." (Agreement, p. 3)

While IGRA provides for the development of a Tribal-State gaming compact, the Act is silent as to which State governmental entity or official may bind a state to such an agreement. Instead, the authority to bind a state to a Tribal-State gaming compact is a question of state and not federal law. Stephan v. Finney, 836 P.2d 1169 (Kan.1992). The answer to your question, therefore, involves an analysis of the respective constitutional powers of the Governor and the General Assembly under State law, the powers granted to the Governor by statute, and an analysis of the Agreement and the Gaming Compact signed by the Governor and the Mohegan Tribe.

Based on our review of the relevant law and the terms of the Agreement and the Compact, it is the opinion of this Office that, while the constitutional authority over compacts such as this one rests with the legislature, existing statutes provided the Governor with the authority to negotiate and execute the April 25, 1994 Gaming Compact and the Memorandum of Understanding. A number of other critical elements of the Agreement with the Tribe, however, do require approval by the General Assembly and other state and federal governmental bodies, as discussed in Part I below. As to the review of future compacts and similar agreements between the State and other sovereigns, the General Assembly is free by statute to prescribe a legislative review and approval process, as it attempted to do before the close of the 1994 legislative session.

To Become Fully Effective, The Agreement Requires Certain Approvals By The State And Federal Governments, Including Approval Of Several Provisions By The General Assembly.

The Agreement signed by the Governor represents a global resolution of the issues concerning the State's relationship with the Mohegan Tribe. The principal components of the Agreement involve a relinquishment by the State of its right to ask the Secretary of the Interior for reconsideration of the federal recognition afforded the Mohegan Tribe by the Bureau of Indian Affairs and, as a result, a relinquishment of the State's right to appeal to federal court that federal recognition. The Tribe's rights to casino gaming under IGRA and to land claims hinge on that recognition. Additionally, the State has abandoned any defenses that it might have to the establishment of a Gaming Compact with the Mohegan Tribe and the construction and operation of a second casino in Connecticut and has agreed to lift the moratorium on video facsimile games contained in the Compact.

In exchange for such considerations, the Tribe has agreed to abandon its claims against more than 20,000 acres of Connecticut land, including all monetary claims related to that land, to make payments in lieu of taxes to municipalities for any land that may be acquired by the Tribe subsequent to its acquisition of land for its initial Reservation, and to pay the State a minimum of $80 million per year for the release of the moratorium on video facsimile games. The Governor's authority to negotiate an overall resolution of the many issues concerning the State and Mohegan Tribe relationship under both federal and state law appears to be well within his Constitutional power to see "that the laws be faithfully executed." Article IV, Section 12, Connecticut Constitution. As this Office has previously stated in regard to the Governor's authority to settle contested matters affecting State operations:

The agreement, which settles a dispute and resolves complex issues involving the interaction of State and federal law, is within the Governor's power to execute. The Governor has "broad discretion to select the means he will use in executing a constitutional duty.... Like the Legislature and the Judiciary, the Governor possesses incidental powers which he can exercise in aid of his primary responsibility." Opinion of the Justices to the Council, Mass., 334 N.E.2d 604, 609 (1975). See also Pytko v. State of Connecticut, 28 Conn.Supp. 173, 175 (1969) (authority of governmental agency to enter into an agreement to arbitrate, absent specific statutory authority, "may be implied from duties imposed on a governmental officer").

93 Conn.Op.Atty.Gen., February 11, 1993, Letter to Honorable Thomas D. Ritter and Edward C. Krawiecki, Jr.

The Agreement, however, seeks to resolve issues that are within the jurisdiction of other state and federal governmental entities. Notwithstanding the assertion that the Agreement "finally settles" an unresolved issue and that the Governor's approval binds the State and all of its agencies, officers and officials, the Agreement contains a number of critical components that are contingent on the approval of other governmental entities. The United States Congress must enact federal legislation approving the agreement, for Indian land claims cannot be extinguished under the Trade and Intercourse Acts without an Act of Congress. The Congress must also approve the transfer of the lands specified in the Agreement to be held in trust by the United States for the Mohegan Tribe. In addition, the Secretary of Interior must accept the Gaming Compact under IGRA. Also implicit in the Agreement is the required approval pursuant to Conn.Gen.Stat.  3-125 by the State Attorney General of the settlement of the Mohegan land claim litigation, which is pending in federal district court.

A number of provisions in the Agreement also require approval by the General Assembly. As the Governor has acknowledged, the General Assembly must approve the transfer of State land (Fort Shantok) to the federal government to be held in trust for the Mohegan Tribe, since State property cannot be transferred without legislative action.

The Agreement between the Governor and the Mohegan Tribe also specifies that the Tribe agrees "to the assumption by the State of Connecticut of criminal jurisdiction over the Mohegan tribal members on land or other natural resources ... owned by the Tribe" and "to the assumption of jurisdiction by the State of Connecticut State Traffic Commission over all gaming related traffic control matters to the same extent as the State Traffic Commission has jurisdiction over traffic control within the State of Connecticut as set out in Chapter 249 of the Connecticut General Statutes,  14-297 to  14-314c." Agreement, par. 1(g) and 1(h). As will be discussed infra, these provisions require approval by the legislature because they extend State law to the Mohegan Reservation and are not part of the Gaming Compact between the State and the Tribe.2 (These provisions also require Congressional approval, as envisioned by the draft federal legislation attached to the Agreement (Exhibit D) because a federal reservation is otherwise subject to federal, rather than state, law.) Unfortunately, the structure of the Agreement places the State at a disadvantage should the required approvals not be obtained.3 Under the Agreement, the State's abandonment of its right to contest the federal recognition of the Mohegan Tribe, as well as the Governor's execution of the Gaming Compact and relinquishment of any State defenses to the establishment of such a Compact have already occurred. However, the Mohegan commitments to the State--such as the release of the Tribe's land and damage claims--have not yet been met, and cannot be met without actions that are beyond the Tribe's control, such as Congressional approval of the extinguishment of their land claims.

The Governor Had The Authority Under Existing Statutes To Execute The Gaming Compact With The Mohegan Tribe.

The Constitutional Authority To Bind The State To A Tribal Gaming Compact Rests With The General Assembly

Article Second of the Connecticut Constitution, as amended by Article XVIII, provides for the distribution of powers between the executive, the legislative and the judicial departments of government:

The powers of government shall be divided into three distinct departments, and each of whom confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. The legislative department may delegate regulatory authority to the executive department; except that any administrative regulation of any agency of the executive department may be disapproved by general assembly or a committee thereof in such manner as shall by law be prescribed.

According to the Connecticut Supreme Court:

the constitution represented a grant of power from the people, in whom all power originally resided, that the powers granted to the legislature are legislative only, those granted to the judiciary are judicial only, those granted to the executive are executive only, and that such powers are complete except as restricted by the state or federal constitution.

Stolberg v. Caldwell, 175 Conn. 586, 595 (1978). The Supreme Court, however, has made it clear "that the powers granted to the departments of government necessarily overlap to some extent ... and that the concept of separation of powers is not one that is capable of precise legal definition yielding clear solutions to intragovernmental disputes." Id. at 596.

The Governor's Constitutional powers are found in Article IV. According to Section 5 of Article IV, "The supreme executive power of the state shall be vested in the governor." Article IV, Section 12, provides that "He shall take care that the laws be faithfully executed." According to the Supreme Court, however, Conn. Const., Art. 4,  5 "vests little or no inherent power in the governor" and although "[t]he governor is authorized to see that the laws are faithfully executed ... the remainder of the governor's authority must be found in other constitutional provisions and in the statutes." Bridgeport v. Agostinelli, 163 Conn. 537, 546-47 (1972). 4

The legislative power resides in the General Assembly and is set forth in Section 1, Article III of the Constitution of Connecticut:

Sec. 1. The legislative power of this state shall be vested in two distinct houses or branches; the one to be styled the senate, the other the house of representatives, and both together the general assembly. The style of their laws shall be: Be it enacted by the Senate and House of Representatives in General Assembly convened.

"All affirmative legislative powers are given exclusively to the General Assembly." Patterson v. Dempsey, 152 Conn. 431, 442 (1965).

The legislative power has been described generally as being the power to make, alter, and repeal laws. It has also been said that the essential of the legislative function is the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct within the limitations laid down by the constitution. The legislative power has been characterized as the vital function which animates, directs, and controls the whole operation of civil authority; it is the most important of all the powers of government, being that in which the supremacy of the government itself consists.

16 Am.Jur.2d, Constitutional Law  318, pp. 849-50.

The issue, then, is whether the compact with the Mohegans is fundamentally legislative in nature--whether, for example, it creates new State law or new responsibilities of State agencies--and therefore falls within the legislature's constitutional province. We conclude that it does, as discussed below.

At the outset, however, we should clarify that the existing federal procedures governing gaming by the Mashantucket Pequot Tribe do not control this issue. The terms of the Tribal-State Compact signed by the Governor and the Mohegan Tribe are virtually identical to the Final Mashantucket Pequot Gaming Procedures imposed by the Secretary of the Interior governing the operation of the Mashantucket Pequot Tribe's casino in Ledyard, Connecticut. 56 Fed.Reg. 24996 (May 31, 1991) Nonetheless, the unique history and nature of the Mashantucket Pequot Gaming Procedures and the subsequent Memorandum of Understanding make them very different from the Mohegan Compact, which was voluntarily negotiated.

The State consistently refused to negotiate a Compact with the Mashantucket Pequot Tribe and, consequently, after several years of litigation, the Secretary of the Interior promulgated federal "Procedures" governing the operation of a casino on the reservation.5 Since the Procedures were imposed on the State by the Secretary of the Interior, the question whether the Governor had authority, without legislative approval, to bind the State to a compact never arose.

In an opinion dated February 11, 1993, this Office determined that the Governor had the constitutional authority to execute a Memorandum of Understanding between the State and the Mashantucket Pequot Tribe, which lifted a moratorium on the operation of video facsimile games contained in the Procedures. This Office determined that the Governor had the authority to execute the Memorandum of Understanding because the agreement "concerns the resolution of the dispute as to whether the Tribe has a right under federal law to operate video facsimile games. It does not involve the creation or amendment of state law." According to the opinion, the Governor executed an agreement "specifically authorized by valid federal regulations, which serves to resolve a conflict with the clear potential for litigation. This type of agreement is fundamentally executive, rather than legislative, in nature." 93 Conn.Op.Atty.Gen., February 11, 1993, Letter to Honorable Thomas D. Ritter and Edward C. Krawiecki, Jr. The February 11, 1993 opinion also does not control the present question. That opinion specifically noted that the Governor's action "did not bind the State to a Tribal-State Compact and did not enact new laws or amend existing laws" and, thus, the opinion did not consider the question presented here. Id. at p. 1.

Unlike the 1993 Memorandum of Understanding with the Mashantucket Pequot Tribe, which resolved a disputed provision of the Procedures imposed by the federal government, the present Gaming Compact affirmatively establishes the responsibilities of the State and its agencies in regard to gaming on the Mohegan reservation. It places mandatory regulatory requirements on the Division of Special Revenue and the State Police for investigations, licensing and registrations in regard to the Tribe's proposed gaming business, and involves the State judicial system in the resolution of appeals and disputes resulting from such activities. Assessments for the cost of the State's regulatory responsibilities under the Compact impose duties on the Comptroller and Treasurer. The service of alcoholic beverages on the reservation is made subject to State alcoholic beverage laws and regulations and will require that permits be issued by the State Department of Liquor Control. State taxes on the sale of alcoholic beverages must be collected and the records of such sales inspected by the Department of Liquor Control. Access to the gaming facilities may require agreements with the State Traffic Commission and action by the Department of Transportation. Finally, the health and safety standards required by the Compact may require involvement of the Department of Environmental Protection and the State agencies generally responsible for enforcement of State laws regarding building, sanitary and health standards and fire safety.

In our opinion such affirmative action extending State agency operations and regulatory activities to the Mohegan reservation entails legislative action and rests within the constitutional province of the General Assembly:

The legislative power of a State, except so far as restrained by its own constitution, is at all times absolute with respect to all offices within its reach. It may at pleasure create or abolish them, or modify their duties. It may also shorten or lengthen the term of service. And it may increase or diminish the salary or change the mode of compensation. And this plenary power is only limited by express terms or necessary implication.

McGovern v. Mitchell, 78 Conn. 536, 553 (1906). See also Stephan v. Finney, 836 P.2d 1169, 1185 (Kan.1992) (The imposition of new or expanded duties on State agencies and departments are actions "which are clearly legislative in nature.") An agreement that fundamentally alters Tribal-State relationships and the jurisdiction and power of state government, as the Gaming Compact does, lies within "one of the broadest and most important fields of legislative power, namely, that of creating the whole machinery of government and providing for its administration." McGovern v. Mitchell, 78 Conn. 536, 554 (1906).

Existing Statutes Delegated Sufficient Statutory Authority To The Governor To Bind The State To The Mohegan Gaming Compact

Since the general constitutional authority to execute a Tribal-State gaming compact rests with the legislature, the question is whether the legislature has by statute delegated sufficient authority to the Governor to enter such a compact.

In concluding Tribal-State gaming compacts, state legislatures have set forth varying approaches to procedures binding their respective states under IGRA. In some, the Governor has been explicitly authorized to both negotiate and execute Indian Gaming Compacts.6 In other states where Governors have signed Tribal-State gaming compacts, the legislative authorization to the Governor to sign such compacts under IGRA has not been explicitly stated. In Minnesota the governor has signed twenty-two gaming compacts with Indian Tribes. Minnesota statutes provide that the "governor ... shall ... negotiate in good faith a tribal-state compact regulating the conduct of Class III gambling ... on Indian lands of a tribe requesting negotiations. The agreement may include any provision authorized under section 11(d)(3)(c)" of IGRA. There is, however, no direct authorization to the Governor to execute such compacts on the state's behalf. MN St.  3.9221.

In two states, the Governor's power to enter a binding gaming compact with a Tribe without legislative approval was upheld, despite the absence of an explicit statutory authorization, on the basis of more general statutes that were interpreted to encompass and authorize the negotiation and execution of gaming compacts.

In Oregon, the Governor signed two compacts with Indian Tribes without having specific authority to sign compacts under IGRA. The Governor's authority to do so was upheld by the Oregon Attorney General on the basis of a statute that did not deal specifically with Indian gaming. Rather, Oregon statute ORS 190:110 empowers the executive department to enter into agreements with Indian tribes "to insure that the state ... does not interfere with or infringe on the exercise of any right or privilege of an American Indian tribe ... granted under any federal treaty, executive order, agreement, statute, policy or any other authority." According to a 1990 Oregon Attorney General opinion, while this statute was originally passed "to authorize the executive branch of state government to negotiate state/tribal agreements, such as those permitted under 25 U.S.C.  1919 (1988), a part of the Indian Child Welfare Act", the Attorney General determined that the statute "empowered the executive branch to enter agreements with the tribes to preserve their federally protected rights and to avoid litigation" and, with respect to Tribal-State Gaming Compacts, "directly applies here." Letter of Advice, September 26, 1990 to James J. Davey, Director, Oregon State Lottery (OP-6300).

In Mississippi, the Governor signed a gaming compact despite the lack of specific statutory authorization for the Governor to bind the State to Indian gaming compacts. On review, a federal district court determined that a state statute which conferred general authority on the Governor to "transact all business of the state, civil and military, with the United States government or with any other state or territory" gave sufficient authority to the Governor to bind the State to a compact with other sovereign entities such as sovereign Indian tribes despite the lack of any specific reference to gaming. Willis v. Fordice, Civ. No. 3:93-CV-818BN (S.D.Miss., April 8, 1994) (Slip op. at 21-22).7

In the only other reported case to have considered this issue, the Kansas Supreme Court held that a Tribal-State gaming compact was legislative in nature and, in the complete absence of any relevant statutory grant of authority to the Governor "to negotiate the compact .. and bind the state," required legislative approval. Stephan v. Finney, 836 P.2d 1169, 1179 (Kan.1992). In New York, where there was also no statutory authorization to the executive branch to either negotiate or sign such agreements, the Governor signed two gaming compacts. Both compacts, however, were later implemented by the New York legislature through an appropriations act (Chapter 264 of the New York Laws of 1993) in a manner very similar to the Connecticut General Assembly's implementation of the Mashantucket Pequot Procedures through Conn.Gen.Stat.  12-586f. See note 10 infra.

In short, while in a number of states the legislative delegation of authority to the Governor to execute compacts under IGRA has been based on state statutes that specifically conferred that power, in other states such as Oregon, Minnesota, Mississippi and New York, the legislative delegation was implied either from statutes granting the Governor authority to negotiate agreements under IGRA, or statutes granting the Governor general authority to deal with sovereign entities or with Indian Tribes on other federal matters, without specific reference to gaming or IGRA, or from legislative acquiescence.

Prior to the enactment of IGRA, the Connecticut General Assembly delegated significant, broad authority to the Governor to execute binding agreements concerning Indian tribes on the State's behalf. Conn.Gen.Stat.  47-65(e) provides:

The governor is hereby designated the administrative agent of the state to apply for any funds or other aid, cooperate and enter into contracts and agreements with the federal government, the Indian Housing Authority or any other appropriate state or local agency for the purpose of providing necessary services to housing projects to be located on Indian reservations within the state of Connecticut or for any other purpose which the Congress of the United States or the general assembly has authorized or may authorize for expenditures compatible with the services provided for in this chapter. The governor is authorized in the name of the state to make all applications, sign all documents, give assurances and do all other things necessary to carry out the provisions of this chapter.

This provision clearly gives the Governor broad powers to act on behalf of the State in connection with Indian Tribes in Connecticut. Chapter 824 of the General Statutes, the chapter referred to in  47-65(e), concerns the State recognition of indigenous tribes, various matters concerning Indian affairs, and the use and management of the Indian reservations in the State. Chapter 824 clearly contemplates and authorizes action by the Governor to enter agreements that encompass the full range of State-Tribal relationships. Since IGRA itself was enacted in part "as a means of promoting tribal economic development, self-sufficiency and strong tribal governments" (25 U.S.C.  2702)--goals which parallel those of Chapter 824 (see  47-59a, recognizing certain economic and governmental rights of tribes)--IGRA's purposes appear to fit well within the penumbra of Chapter 824.8 The general delegation of authority to the Governor contained in Chapter 824 to act on behalf of the State in regard to matters affecting tribes in Connecticut and to deal with other sovereign entities on such matters is comparable to the authority delegated to the Governors of Oregon and Mississippi, which was found to be sufficient to bind those states to compacts under IGRA.

Subsequent actions by the General Assembly reflect its understanding and confirmation of the Governor's power to enter agreements with Indian tribes, including gaming compacts, on behalf of the State. In 1993, after the Governor executed the Memorandum of Understanding with the Mashantucket Pequot Tribe, and after this Office issued its February 11, 1993 opinion upholding the Governor's authority to sign that agreement, the legislature enacted 93 Conn.Pub.Acts No. 93-365. Section 3 of Public Act 93-365, in language similar to the legislative delegation set forth in Minnesota's general statutes, confers on the Governor the authority to execute a final gaming compact with Indian tribes under IGRA. According to Section 3 of Public Act 93-365:

The governor shall include in each future proposal by the state in negotiations conducted pursuant to the Indian Gaming Regulatory Act, a provision requiring the adoption of an Employment Rights Code established pursuant to section 4 of this act. The governor shall employ his best efforts to ensure that any final agreement, compact or contract established under the Indian Gaming Regulatory Act includes an Employment Rights Code in accordance with section 4 of this act.

This Public Act contemplates that the Governor will both negotiate with the Tribes under IGRA concerning the Employment Rights Code and employ "his best efforts to ensure" that any "final agreement, compact or contract" under IGRA includes an Employment Rights Code. While Public Act 93-365 does not define the word "final", according to its ordinary usage, "final" means: "1. Forming or occurring at the end; last. 2. Of, pertaining to, or constituting the last element in a succession, process or procedure ... 3. Ultimate and definitive; unalterable: The judge's decision is final." American Heritage Dictionary, Second Edition 1982. The Governor can act to ensure that a final compact contains an employment rights code only if he has the power to himself execute a compact which is not subject to legislative review. If his power were only limited to negotiation with the ultimate approval authority resting in the General Assembly, the Governor would not be able to control whether any particular terms were contained in a "final compact." Instead, the terms of the Compact would remain subject to negotiation and alteration--and could not be "final"--until agreed upon by both the Tribe and the General Assembly. The responsibility conferred on the Governor in Public Act 93-365 to attempt to include an Employment Rights Code in final State-Tribal Compacts necessarily includes the power to finally conclude such compacts--a power which is "fairly to be implied as necessary to carry into effect the powers expressly given." Old Colony Gardens, Inc. v. Stamford, 147 Conn. 60, 62 (1959). See also Bridgeman v. Derby, 104 Conn. 1 (1926); City of Bridgeport v. Housatonic Rail-Road Company, 15 Conn. 475 (1843); and Pytko v. State of Connecticut, 28 Conn.Supp. 173 (1969).9

The legislative history indicates that, at the time the General Assembly enacted Public Act 93-365, its attention was focused on the agreement between the State and the Mashantucket Pequot Tribe concerning video facsimile machines (the Memorandum of Understanding), which this Office in its February 11, 1993, opinion determined the Governor had the authority to execute. In Public Act 93-365, the General Assembly clearly directed the Governor to negotiate with Indian Tribes under IGRA and to attempt to include an Employment Rights Code in any final agreements which he reached with Indian Tribes similar to the Memorandum of Understanding. However, the General Assembly did not limit the provisions of Public Act 93-365 to "final agreements" with Indian Tribes, but expressly extended the Act's direction to "final compacts" as well between the State and Indian Tribes under IGRA, indicating that it anticipated and intended the same gubernatorial power to be exercised in connection with compacts. " 'It is not for us to search out some intent which we may believe the legislature actually had and give effect to it, but we are confined to the intention which is expressed in the words it has used.' Connecticut Light & Power Co. v. Walsh, 134 Conn. 295." Johnson v. Manson, 196 Conn. 309, 314 (1985).

This interpretation, that the Governor was delegated the statutory authority to execute a final Compact, is consistent with the Governor's statutory authority in other aspects of Tribal-State relations (Chapter 824 of the General Statutes) and is supported by legislative action taken in the 1994 Session of the General Assembly. In the 1994 session, the legislature passed Substitute Senate Bill No. 370, "An Act Concerning Compacts Between Connecticut and Other States or Indian Tribes." This Act required the Governor to submit to the legislature "[w]ithin ten days after the date of execution" any "compact or amendment to a compact, between the state of Connecticut and another state or an Indian tribe." Once submitted, the legislature had the right to approve or reject any such compact. If rejected, "the compact or amendment shall not be valid and shall not be implemented." Consistent with Public Act 93-365, Substitute Senate Bill No. 370 authorized the Governor to execute a Tribal-State Compact. Thus, the General Assembly plainly sought to reserve for itself the authority to either ratify or reject any agreement between the Governor and a Tribe. Following legislative passage, this bill was submitted to the Governor for his signature. On April 25, 1994, the Governor took several actions: he vetoed Substitute Senate Bill No. 370; he entered into an "Agreement" with the Mohegan Indian Tribe, in part 2.b of which the Governor, on behalf of the State of Connecticut agreed to enter into a compact with the Mohegan Tribe pursuant to IGRA; and he executed the compact referred to in the Agreement. Neither the Compact nor the Agreement was submitted to the legislature for its review. Much public attention was devoted to the execution by the Governor of the Compact and Agreement. Indeed, a great deal of public discussion ensued concerning whether the legislature should override the Governor's veto of Substitute Senate Bill No. 370 and establish the legislature's right to review and approve or reject compacts made pursuant to IGRA. Although the Senate voted on April 26, 1994 to override the Governor's veto, the House of Representatives did not and, on May 4, 1994, the legislative session ended with no override of the veto. Consequently, the bill failed to become law.

The legislature is presumed to act with knowledge of contemporaneous interpretations of the law. White v. Burns, 213 Conn. 307, 333 (1990); Iacomacci v. Trumbull, 209 Conn. 219, 223 (1988); Connecticut Light and Power Co. v. Public Utilities Control Authority, 176 Conn. 191, 198-99 (1978). It is a fundamental tenet of statutory construction that when the legislature fails to act to correct or change a judicial or executive interpretation of a statute, it is presumed to concur in and validate that interpretation. "We presume that the legislature is aware of our interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation." White v. Burns, supra, 213 Conn. at 333 (internal quotation marks omitted).

Legislative acquiescence in the interpretation accorded to a statute by another branch of government is especially strong where the interpretation concerns an issue of great public importance and occurs in the context of great public interest in the issue. CL & P v. PUCA, supra, 176 Conn. at 199. In that event, legislative inaction to correct the interpretation is construed as "legislative concurrence in that interpretation. That legislative concurrence is 'presumptive evidence' of the correctness of the administrative interpretation." Id., citing 2A Sutherland, Statutes and Statutory Construction (4th Ed.1973) 349.10, pp. 261-62.

In the case of Senate Substitute Bill No. 370, there is no question that the authority of the Governor to bind the State to a Compact under IGRA without the participation of the legislature was of great public interest and importance. The original passage in the 1994 session of Senate Bill No. 370 indicates a legislative intent to vest in itself the power to review any such compact executed by the Governor with an Indian tribe, and to retain final authority to accept or reject it. Under the circumstances, the legislature's failure to override the Governor's veto of the Bill can only be seen as legislative acquiescence in the Governor's authority to execute compacts with Indian Tribes without subsequent legislative ratification or rejection.

Notwithstanding the Governor's authority to enter a binding Agreement with the Tribe, the General Assembly must implement the State law enforcement and State regulatory responsibilities contained in the Compact. If it fails to do so, and thus declines such responsibilities under Section 10 of the Compact, the Tribe itself would assume responsibility for such regulation by default.10 The Memorandum Of Understanding Between The Governor And The Mohegan Tribe Does Not Have To Be Submitted To The Legislature

The Governor's authority to execute a Memorandum of Understanding concerning the suspension of a moratorium on video facsimile gaming contained in a Tribal-State Gaming Compact was discussed and approved by this Office in 93 Conn.Op.Atty.Gen. February 11, 1993, Letter to the Honorable Thomas D. Ritter and Edward C. Krawiecki, Jr. That Memorandum of Understanding, like the present memorandum of Understanding with the Mohegans, resolved a dispute over the Tribe's legal authority to have video facsimiles, which was embodied and preserved for later resolution in the moratorium provision in Section 15(a) of the Procedures. Since the Mohegan Compact contains an identical Section 15(a) moratorium, our February 11, 1993 opinion controls the instant question.

Conclusion

In summary, we conclude that a number of provisions in the Agreement require approval by the General Assembly or by other branches of the state and federal governments, but the Compact itself need not be submitted for approval to the General Assembly. The ultimate constitutional authority over compacts between the State and Indian Tribes rests with the legislature. In specific statutes, sufficient statutory authority was delegated to the Governor to enter this Tribal-State Gaming Compact. In providing that authority, the legislature failed to reserve to itself the power to reject or ratify the final Compact achieved by the Governor with the Mohegan Tribe.

We reach the conclusions contained in this opinion without offering comment on the substantive merits of the Agreement or the Compact.

Finally, we note that there are public policy considerations favoring the review of Tribal-State Compacts by the General Assembly, and such review can be explicitly codified in the law. Our opinion concludes solely and simply that there was sufficient statutory authority for the Governor to execute this Gaming Compact between the State and the Mohegan Tribe. This conclusion is narrow and unique and is limited to the narrow and unique factual circumstances and legal issues presented here. The authority of the Governor to execute future compacts of this nature is subject to the future direction of the General Assembly.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

RB


Footnote:

1 Under IGRA, a tribe may conduct Class III gaming activities on its reservation after it has negotiated a compact with a state and the Compact is approved by the Secretary of the Interior. 25 U.S.C. 2710(d)(1)(A), (d)(2)(B), (d)(3)(B). According to IGRA: (d)(1) Class III gaming activities shall be lawful on Indian lands only if such activities are ... (C) Conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State...."

2 As discussed at the end of Part II below, the legislature must also implement the State regulatory scheme in the compact, unless it chooses to allow the Compact's default provisions allowing for Tribal self-regulation to take effect.

3 Paragraph 4 of the Agreement purports to make certain provisions immediately effective upon execution of the Agreement. In fact, most of these provisions could not be immediately effective, because they relate to issues (e.g., the location of a casino ( 1(c)) and the regulation of casino-related construction by the State Traffic Commission ( 1(d)) that could not even arise until a compact is approved by the Secretary of Interior and a Tribal reservation on which a casino could be built is approved by Congress.

4 The Governor's general statutory powers and duties are set forth in Conn.Gen.Stat.  3-1, which provides:

Sec. 3-1. General powers and duties. The supreme executive power of the state shall be vested in the governor. He may, personally or through any authorized agent, investigate into, and take any proper action concerning, any matter involving the enforcement of the laws of the state and the protection of its citizens. He may appoint any officer of the state whose office is provided for by law but for whose appointment no other provision is made by the constitution or the statutes. He may demand in writing from any officer, department, board, commission, council or other agency of the state a report on any matter relating to the official duties of such agency.

5 A prior opinion of this Office succinctly summarized the history of those procedures:

The State of Connecticut has consistently opposed casino gambling anywhere in the State. Accordingly, when this Tribe first sought negotiations under the Indian Gaming and Regulatory Act ("IGRA") (25 U.S.C.  2701, ) in early 1989, the State refused to negotiate regarding casino gambling. This position was consistently advocated through litigation in the Federal District Court, the Second Circuit Court of Appeals, and finally in the United States Supreme Court, which denied Connecticut's Petition for Certiorari. See Mashantucket Pequot Tribe v. State of Connecticut, 737 F.Supp. 169 (D.Conn.) aff'd, 913 F.2d 1024 (2nd Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1620 (1991).

The result of this litigation was that the federal courts ruled that the Connecticut statutory scheme permitting Las Vegas Nights (Conn.Gen.Stat.  7-186a, et seq.) was sufficiently similar to casino type gambling so as to constitute "such gaming" as that term was used in IGRA. Consequently, the State was ordered to negotiate with the Tribe concerning the operation of a casino on its reservation in Ledyard. Moreover, the State was compelled to submit a draft compact to a court appointed mediator, who eventually chose the State's version rather than the draft presented by the Tribe. Under the federal scheme, the State was given the option of "accepting" the draft compact it had submitted to the mediator. It chose not to do so because the Supreme Court had not yet ruled on the State's Petition for Certiorari. Thereafter, the mediator transmitted the unsigned "Compact" to the Secretary of the Interior who, in turn, formally promulgated it with minor changes as federal Procedures--officially and authoritatively published in the Federal Register--governing the operation of a casino on the reservation. (Final Mashantucket Pequot Gaming Procedures, 56 Fed.Reg. 24996 [May 31, 1991]).

Simply stated, there is no Compact between Connecticut and the Tribe. The gambling activity on the Ledyard reservation is governed exclusively by the Procedures promulgated by the Secretary of the Interior pursuant to IGRA. These Procedures are a regulatory enactment of the United States government and are specifically authorized by 25 U.S.C.  2710(d)(7)(B)(vii). The only authority to conduct gambling at this reservation is this regulatory enactment of the United States Government. 93 Conn.Op.Atty.Gen. February 11, 1993, Letter to Honorable Thomas D. Ritter and Edward C. Krawiecki, Jr. 6 Arizona: AZ Rev.Stat. 5-601 (authorizing Governor to negotiate and "execute" tribal-state compact); California: CA Bus. 7 Prof.Code  19445 (racing board designated as agency "responsible for negotiating" with Indian tribes "for the purpose of entering into a Tribal-State compact"; Colorado: Colo. Revised Statutes Anno. 12-47.2-101, 102 (governor may negotiate compact with tribes under IGRA and bind state); Iowa: IA St.  10A.104(10) (Director of Department of Inspections and Appeals to "enter into" and implement compacts); Louisiana: LA R.S. 14:90 (authorizing Governor to appoint Indian Gaming Commission and "enter into and sign" compacts), Acts 1990, No. 888,  1; Nebraska: LB 231 (authorizes Governor to negotiate and "execute" compacts under IGRA); South Dakota: S.Dak. Codified Laws, 1-4-25, 42-7B-11 (authorizing, respectively, Governor to hold hearings "before entering into a compact" with a tribe, and Gaming Commission to implement compacts); Washington: Wash.Laws of 1992, c. 172 (authorizing Governor to "execute" compacts negotiated by Gambling Commission, after public hearings before legislative committees and Commission, and authorizing Commission to implement compacts); Wisconsin: 14.035 Wis.Stat. (authorizing Governor to "enter into" compacts), see also 565.016(m) Wis.Stat. (eliminating slot machines and casino gambling) and 1993 Constitutional Amendment to Art. 4,  24(6). 7 The Mississippi statute provides:

7-1-13. Business with the United States government

The governor shall transact all the business of the state, civil and military, with the United States government or with any other state or territory, except in cases otherwise specially provided by law.

8 While Conn.Gen.Stat.  47-65(e) was enacted before the passage of IGRA, the General Assembly made significant amendments to Chapter 824 in 1989 (Public Act 89-368), after IGRA became law, yet it left the Governor's broad powers under Section 49-65(e) intact.

9 If the legislature itself intended to retain the authority to execute final compacts, its direction to the Governor would be superfluous because the General Assembly itself would be able to ensure that any final compact contained the desired Employment Rights Code, or at least reject a compact lacking such a code. "Statutes should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment." 84 Century Limited Partnership v. Board of Tax Review, 207 Conn. 250, 263 (1988) (internal citations omitted). "[N]o word in a statute is to be treated as superfluous." Peck v. Jacquemin, 196 Conn. 53, 66 (1985).

10 Pursuant to the federal gaming procedures concerning the Mashantucket Pequots, the legislature acted to implement the new regulatory powers that were required by the federal Procedures. Conn.Gen.Stat.  12-586f. Section 12-586f provides an authorized mechanism for the State to receive and process the tribe's payment of "regulatory costs incurred by any state agency which are subject to reimbursement by the tribe" under the Procedures, i.e., those new regulatory activities required by the Procedures.


Back to the 1994 Opinions Page
Back to Opinions Page



Content Last Modified on 6/7/2005 12:36:16 PM